1 14-3213-cr(L) United States v. Christopher Finazzo, Douglas Dey

UNITED STATES COURT OF APPEALS
FOR THE SECO ND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DA TABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the Unite d States Court of Appeals fo r the Second Circuit, held at the Thurgood Marshall United States Courth ouse, 40 Foley Square, in the City of New York, on the 7 th day of March, tw o thousand seventeen.

PRESENT: R OBERT D. S ACK

, D ENNY C HIN

, C HRISTOPHER F. D RONEY

, Circuit Judges

.

---------------------------- ---------------------------- -------------- U NITED S TATES OF A MERICA

, Appellee

,

v. Nos. 14-3213-cr(L) 14-3330-cr(Con)

C HRISTOPHER F INAZZO

, D OUGLAS D EY

, Defendants-Appellants

.

---------------------------- ---------------------------- --------------

F OR D EFENDANTS -A PPELLANTS : R OBERT J.A. Z ITO (Alan S. Lewis, Karen E. Meara, Madelyn K. White, on the brief ), Carter Ledyard & Milburn LLP, New York, New York, for Christopher
Finazzo.

T. B ARRY K INGHAM (Jacques Semmelman, Rachel L. Cohn, on the brief ), Curtis, Mallet-Prevost, Colt & Mosle LLP, New York, New York, for Douglas Dey.2 F OR A PPELLEE : W INSTON M. P AES , Assistant United States Attorney (Amy Busa, Claire S. Kedeshian, Assistant United States Attorneys, on the brief ), for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn,
New York.

Appeal from the August 27, 2014 judgments of the United States District Court for the Eastern District of New York (Mauskopf, J. ), as amended on November 12, 2014.

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgments of the district court are AFFIRMED in part and
VACATED and REMANDED in part.

Defendant Christopher Finazz o appeals his conviction and sentence of eight years’ imprisonment and three years’ supervised re lease. His sentence was imposed following a jury verdict of guilty on: (1) one count of conspiracy to commit mail and wire fraud and
to violate the Travel Act—in violation of 18 U.S.C. § 371; (2) f ourteen counts of mail
fraud—in violation of 18 U.S.C. § 1341; and (3) one count of wire fraud—in violation of 18 U.S.C. § 1343. In addition, Finazzo appeals the $25,79 0,822.94 forfeiture order, and Finazzo and Defendant Douglas Dey both a ppeal the district c ourt’s $13,690,822.94 restitution order imposed jointly and severally against them.

The charges arose from an alleged sche me in which Finazzo—a merchandising executive at Aéropostale, Inc. 1 —caused Aéropostale to us e South Bay Apparel Inc. (“South Bay”)—a company contro lled by Dey—as a supplier of certain apparel for retail sale by Aéropostale, in excha nge for secret payments to Finazzo of portions of South Bay’s profits. On appeal, Finazzo argues that: (1) the district court’s jury instructions regarding the “right to control” Aéroposta le’s property under the mail and wire fraud statutes were improper, (2) the district c ourt improperly gave th e jury a “no-ultimateharm” instruction, (3) there was insufficien t evidence to support Finazzo’s conviction under the “right to control” theory, (4) th e district court erred in excluding expert testimony offered by Finazzo, (5) the distri ct court procedurally erred in calculating Aéropostale’s losses under the Sentencing Guidelines, (6) Finazzo’s eight-year prison sentence was substantively unreasonable, (7) the di strict court erred in instructing the jury that forfeitability of proceeds and property need only be prove n by a preponderance of the evidence, (8) the jury’s forfeiture verdict was un constitutionally excessive, (9) the
district court erred in conclu ding that Finazzo had waived his attorney-client privilege regarding an email that triggered Aéropostal e’s investigation of the alleged fraud, and

1 Aéropostale is a retailer of casual apparel and accessories primarily targeting teenagers.3 (10) the district court erred in its restituti on calculation. Dey also challenges the district
court’s restitution calculation.

We address points (1), (3), and (10) in an opinion simultaneously issued with this order. The opinion affirms the district c ourt on points (1) and (3), and vacates and remands to the district court on point (10) for a new restitution calculation. In this summary order, we affirm the district cour t on the remaining issues. We assume the parties’ familiarity with the underlying f acts and procedural history of this case.

A. “No Ultimate Harm” Instruction

In its jury instructions re garding the substantive mail -fraud counts (Counts 2–15), the district court explained that good faith of the defendant was a complete defense to a mail-fraud charge. However, the court added that:

[I]f the defendant participated in the sc heme to defraud, then a belief by the defendant, if such belief existed, th at ultimately everyt hing would work out so that no one would lose any money do es not require you to find that the defendant acted in good fa ith. If the defendant participated in the scheme for the purpose of causing some financia l or property loss to another, then no amount of honest belief on the part of the defendant that the scheme would, for example, ultim ately make a profit, will excuse fraudulent actions or false representations by him.

As a practical matter, then, in orde r to sustain the ch arges against the defendant, the government must prov e beyond a reasonable doubt that the
defendant knew that his conduct as a participant in the scheme was
calculated to deceive and nonetheless, he partic ipated in the alleged fraudulent scheme for the purpose of causing some loss to another.

Finazzo App’x at 100. Finazzo argues that th ere was no evidentiary basis for this “no
ultimate harm” instruction and that it therefore improperly eliminated the Government’s burden to prove he intended to defraud Aéropo stale. We review the propriety of jury
instructions de novo

. United States v. Botti , 711 F.3d 299, 30 7 (2d Cir. 2013).

This Court has acknowledged that “no u ltimate harm” instructions may “appear[] to be at odds with the requirement that a de fendant must have intende d to harm his victim in order to be guilty of mail fraud.” United States v. Rossomando , 144 F.3d 197, 201 (2d Cir. 1998). However, we have stated that the “key wo rd” in such instructions is “ultimately,” and that “the point that [such in structions] seek[] to convey is that where
some immediate loss to the victim is cont emplated by a defendant, the fact that the defendant believes . . . that he will ‘ultimately’ be able to work things out so that the
victim suffers no loss is no excu se for the real and immediate loss contemplated to result4 from defendant’s fraudulent conduct.” Id. As such, in cases wher e there is “a sufficient predicate in the record” for the instruction, “t he risk that a jury might be misled into believing that no harm need be intended is re duced,” and the instruction is permissible.
Id. at 202.

We find that there was a sufficient fa ctual predicate for the no-ultimate-harm
instruction. While the defense’ s theory at trial largely focu sed on the claim that Finazzo did not intend Aéropostale to ever lose money, see id. (finding a no-ultimate-harm instruction improper where defense’s theory at trial had been that the defendant thought the victim was “never going to lose money”), the defense also emphasized that Aéropostale was ultimately quite successful over the time period of Finazzo’s alleged fraud. We find this to be a sufficient factual predicate for the no-ultimate-harm instruction, especially where the district c ourt clarified immediately thereafter that the Government was still required to establish that Finazzo engaged in the alleged fraudulent scheme “for the purpose of causing some loss to another.” Finazzo A pp’x at 100. Indeed, we upheld a nearly identical clarificati on of a no-ultimate harm instruction in United
States v. Berkovich , 168 F.3d 64 (2d Cir. 19 99), because it “clearly in formed the jury that they could not convict appellant unless he intended to cause lo ss to someone,” which “greatly reduced” the possib ility of jury confusion, id. at 67.

B. Expert Testimony

Finazzo argues that the district court e rroneously excluded ex pert testimony by Sam Rosenfarb, a partner at a forensic a ccounting and valuation firm. Rosenfarb was offered to testify that Aéro postale “was not financially damaged as a result of the transactions with South Bay,” and that the transactions between Aéropostale and South Bay were “fair,” “bona[]fide,” and that “they were a good de al for Aéropostale.” Finazzo App’x at 128. The district court prec luded Rosenfarb’s testimony following a Daubert hearing. See Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579 (1 993). We review a district court’s decision to exclude expert testimony under Daubert for abuse of
discretion. Amorgianos v. Nat’l R.R. Passenger Corp. , 303 F.3d 256, 264 (2d Cir. 2002).
A decision is not an abuse of discreti on unless it is “manifestly erroneous.” Id. at 265 (quoting McCullock v. H.B. Fuller Co. , 61 F.3d 1038, 1042 (2d Cir. 1995)) (internal quotation marks omitted).

Federal Rule of Evidence 702 permits ex pert testimony if: “(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to
understand the evidence or to determine a f act in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of
the case.” Fed. R. Evid. 702.5 The district court did not abuse its disc retion in precluding Rosenfarb’s expert testimony. As an initial matter, the district court determined that Rosenfarb’s proffered opinion that Aéropostale “was not financially damaged” was not ra ised in “any . . . disclosures” and “there clearly was no notic e to the government as to that” opinion. Finazzo App’x at 222. Finazzo does not challenge that finding on appeal, let alone argue
that it was an abuse of discretion. Moreover , the court correctly found that Rosenfarb’s opinion that the transactions betw een Aéropostale a nd South Ba y were bona fide , rather than fake, was irrelevant, since it was undi sputed that Aéropostale received goods it bought from South Bay. See Finazzo App’x at 128 (Rosenfa rb stating that “Bona[]fide transactions means they were real transactions, they were n’t bogus. There actually were goods that were delivered and received and paid for.”).

The district court also properly precluded Rosenfarb’s opinion th at the transactions were a “good deal” for Aéropo stale. When asked at the Daubert hearing how he defined “good deal,” Rosenfarb responded: “It’s an English concept. It’s just English words.” Finazzo App’x at 184. On cr oss-examination, the Govern ment followed up by asking, “So you just, hey, it’s a good deal?” Id. Rosenfarb responded, “That’s fair.” Id. The district court correctly found that Rose nfarb’s opinion was inadmissible because it addressed lay matters that the jury was capabl e of understanding and deciding without the expert’s help. See Andrews v. Metro N. Commuter R.R. Co. , 882 F.2d 705, 708 (2d Cir. 1989) (“For an expert’s testimony to be admi ssible . . . it must be directed to matters
within the witness’ sc ientific, technical, or specialized knowledge and not to lay matters which a jury is capable of understanding an d deciding without the expert’s help.”).

Lastly, the district court did not abuse its discretion in precluding Rosenfarb’s testimony that the transactions were “fair.” Rosenfarb’s testimony was based merely on a comparison of South Bay’s gross ma rgins to that of its “peers.” See Finazzo App’x at 169. However, inter alia , the district court correctly poi nted out that: (1) Rosenfarb did not explain why he considered these entities “peers” of South Bay, (2) the pu rported peer groups did not appear to actually be sim ilar, since some of the businesses were in different industries, (3) Rosenfarb compar ed South Bay’s and Aéropostale’s gross margins, even though he con ceded the companies were not similarly situated, and (4) Rosenfarb did not testify that those in his field rely on the data he used for peer-group comparisons. Under such circumstances, the di strict court was within its discretion to preclude Rosenfarb’s testimony as unreliable. See Amorgianos , 303 F.3d at 266 (“A court may conclude that there is si mply too great an an alytical gap between the data [relied on by an expert] and the opinion prof fered. Thus, when an expert opinion is based on data, a methodology, or studies that are simply in adequate to support the conclusions reached,
Daubert and Rule 702 mandate the exclusion of that unreliable opinion testimony.” (citation omitted)).6 C. Procedural Reasonableness of Sentence

Finazzo challenges the district court’s se ntence as procedur ally unreasonable, arguing that the district court erred in calcu lating an actual loss to Aéropostale of over $20,000,000.00—wh ich increased Finazzo’s offens e level by 22 under U.S.S.G. § 2B1.1(b). This Court reviews a senten ce for procedural reasonableness under a
deferential abuse-of-discretion standard. United States v. Jesurum , 819 F.3d 667, 670 (2d Cir. 2016). We review the district court’s in terpretation of the Sentencing Guidelines de

novo and its findings of fact for clear error. United States v. Rubenstein , 403 F.3d 93, 99 (2d Cir. 2005).

Finazzo contends that Counts 2 throug h 16—on which Finazz o was convicted of mail and wire fraud for depriving Aéropostale of the “right to contro l” its assets—cannot
support any loss calculation because the right to cont rol assets is an “intangible interest”
whose diminution cannot be me asured in dollars. Finazzo Br. at 83–85. This argument has no merit. The Sentencing Guidelines de fine “[a]ctual loss” as “the reasonably foreseeable pecuniary harm that resulted fr om the offense.” U.S. S.G. § 2B1.1 cmt. n.3(A)(i). “Pecuniary harm” is defined as “har m that is monetary or that otherwise is readily measurable in money.” Id. cmt. n.3(A)(iii). Finazzo cites no authority for the proposition that deprivation of the right to control assets cannot create loss under the Guidelines. Indeed, this Court has expressly c ontemplated that deprivation of the right to control could lead to tangible, pecuniary harm. See United States v. Mittelstaedt , 31 F.3d 1208, 1217 (2d Cir. 1994) (stating that depriva tion of the right to control “does not give rise to mail fraud liability unless the omissi on can or does result in some tangible harm” and that the government had to establish that the deprivation “caused (or was intended to cause) actual harm to the [victim] of a pecuniary nature or that the [victim] could have negotiated a better deal for itself if it had no t been deceived”). We have subsequently upheld loss calculations wher e the defendant was convicted on a right-to-control theory. See, e.g.

, United States v. Viloski , 557 F. App’x 28, 35–36 (2d Cir. 2014) (summary order) (affirming the district court’s determin ation that the defendan t’s kickback scheme created a loss, where the de fendant was convicted on a right-to-control theory). We therefore reject Finazzo’s argument on this point.

Finazzo further argues that the district court erred in attributing loss to the conspiracy. He claims that the district c ourt “restricted its analysis to whether Mr. Finazzo caused a loss [under th e conspiracy count (Count 1)]. ” Finazzo Br. at 85–86. He then contends that the conspiracy could no t have caused loss to Aé ropostale because the jury did not find him guilty of intent to deprive Aéro postale of money under the
substantive mail and wire fraud counts (Counts 2–16). 2 On this basis, he claims that the

2 Count 1 charged Finazzo with conspiracy to commit mail fraud, wire fraud, and to violate the Travel Act. In its special verdict sheet, the jury found Finazzo guilty of conspiracy to commit mail fraud “[o]n the basis of intent to deprive Aéropostale of money” and “[o]n the basis of Aéroposta le’s right to control use of its assets.” Dist. Ct. Dkt. No. 260, at 2. It found Finazzo guilty of conspiracy to commit wire fraud on the basis of Aéropostale’s right to7 district court’s entire loss calculation was im proper. We also reject this argument. To begin with, Finazzo incorrectly as serts that the district court re stricted its analysis for its
Guidelines calculation to the loss caused by the conspiracy offense. The district court stated that it was considering only the cons piracy conviction “[f]or purposes of fixing restitution,” to avoid determin ing whether convictions based on a right-to-control theory constituted offenses against property with in the meaning of the Mandatory Victims Restitution Act, 18 U.S. C. § 3663A. Dey App’x at 2530. Th e court did not so restrict its analysis with regards to its loss calculation. Fi nazzo also incorrectly a sserts that the jury’s not-guilty verdict on Counts 2 –16 for intent to deprive Aéropostale of money precludes a loss finding for the conspiracy conviction. He argues that a conspiracy can support a loss finding “only if specific acts are taken to further the conspiracy that inflict a loss.” Finazzo Br. at 86. However, th e jury’s verdict on Counts 2–16 does no t compel the finding that no overt act taken in furtherance of the conspiracy inflic ted a loss. First, as explained above, the jury fo und Finazzo guilty on Counts 2–16 on a right-to-control theory, and Finazzo has failed to demonstrate that de privation of the right to control assets cannot inflict a loss. Second, the a lleged overt acts under the conspiracy count (Count 1) include specific acts beyond the sc ope of Counts 2–16. In fact, the overt acts spanned a ten-year time period (1996–2006), wh ile the substantive counts only involved
transactions made in 2005 an d 2006. Third, the jury concl uded that Finazzo was guilty of conspiracy to commit mail fraud on the basis of both his intent to deprive Aéropostale of money as well as the loss of the right to control its assets, a nd the district court made the
same conclusion. 3 Thus, we reject Finazzo’s argument that the district court could not properly attribute loss to the conspiracy count.

Finazzo also argues that his sentence is procedurally unreas onable because “the
District Court restricted its calculation of act ual losses to what it thought it could attribute to the conspiracy” and then us ed that loss calculation to calculate a Guidelines range above the statutory maximum for the conspira cy offense. Finazzo Br. at 93–95. This argument is also without merit. As noted ab ove, the district court restricted its loss
calculation to the conspiracy count only for restitution purposes , not for its Guidelines
calculation as to the recommende d period of incarceration. This fact vitiates Finazzo’s argument, since he fails to demonstrate that the loss calculation was based solely on the conspiracy count. Furthermore, even if the district court had only considered the loss

control use of its assets, but not on the basis of intent to deprive Aéropostale of money. The jury also found Finazzo guilty of conspiracy to violate the Travel Act. Counts 2 through 15 charged Finazzo with specific substantive mail fraud counts. On each of those counts, the jury found Fin azzo guilty on the basis of Aéropostale’s right to control use of its assets, but not on the basis of intent to depr ive Aéropostale of money. C ount 16 charged Finazzo with substantive wire fraud. The jury found Finazzo guilty on the ba sis of Aéropostale’s right to control use of its assets, but not on the basis of intent to deprive Aéropostale of money.

3 Moreover, on Counts 2–16, the jury declined to find Finazzo guilty on the basis of intent to deprive Aéropostale of money. Finazzo conflates this with a finding that he did not inflict a loss. They are, however, separate questions. Furthermore, even if the jury had found that Finazzo did not in flict a loss, “district courts may find facts relevant to sentencing . . . by a preponderance of the evidence and in so doing may take into account acquitted conduct when sentencing defendants.” United States v. Johnson , 507 F.3d 793, 797 (2d Cir. 2007).8 caused by the conspiracy, Finazz o provides no support for his claim. The district court grouped Finazzo’s offenses together under U.S.S.G. § 3D1.2(b), and Finazzo does not challenge that grouping on appeal. Under § 3D 1.3(a), the offense leve l applicable to the group was “the highest offense level of th e counts in the Gro up.” Finazzo cites no authority for the proposition that the Guidelines range for a group must be constrained by the statutory maximum for the count that pr ovides the group’s offense level under §
3D1.3.

Finazzo also claims that the district cour t’s explanation of its loss calculation was
insufficient. He states that the district court “provided no explanation for how it leapt from the government’s so-called ‘examples’ of loss to its conclusion that the precise amount of Mr. Finazzo’s gain was a measure of loss.” Finazzo Br. at 87. Contrary to Finazzo’s assertions, the district court’s e xplanation of its loss calculation does not
constitute an abuse of discreti on. In explaining its calculation, the district court adopted
the detailed factual recitation in the Government’s Sentencing Memorandum. Inter alia

, that memorandum noted that Julian Geig er—Aéropostale’s Chie f Executive Officer— testified that Finazzo profiting from transac tions with vendors “directly diminished Aéropostale’s ability to maximize its profits because monies were going elsewhere that could have gone to the company.” Dist. Ct. Dkt. No. 334, at 13 (quoting Dey App’x at 1418) (internal quotation marks omitted). It is undisputed th at Finazzo received $25,790,822.94 from his association with So uth Bay. The district court therefore explained that it found an actual loss to Aéropostale in that amount because Aéropostale’s loss could “reas onably be measured as the value of the kickbacks for Guidelines purposes.” Dey App’ x at 2569. We conclude that the district court did not abuse its discretion in providing this explana tion for using the amount of Finazzo’s gain
as a measure of loss for Guidelines purposes.

Relatedly, Finazzo appears to argue that the evidence did not support the district
court’s conclusion that the amount of kick backs was a reasonable measure of loss. The district court’s factual findings relating to lo ss must be established by a preponderance of
the evidence. United States v. Uddin , 551 F.3d 176, 180 (2d Ci r. 2009). However, “the
court need not establish the loss with precision but rather need only make a reasonable estimate of the loss, given the available information.” Id. (internal quotation marks omitted). We review such factual findings on loss for clear error. Id. Even assuming that
the evidence does not establis h a direct correlation between the amount of kickbacks Finazzo received and Aéropostale ’s loss, such a correlation is not required for Guidelines purposes. We are satisfied that the district court did not clearly err in finding that the
amount of kickbacks was a reasonable estim ate of the loss, given the evidence. At trial, Geiger testified that “any prof its that [Finazzo] would have gotten, in my mind, would [otherwise] have accrued to th e company[,] increasing its profitability.” Dey App’x at 1423. Similarly, Geiger testified that a ny profits Finazzo rece ived from South Bay
“would have been at the di rect cost to Aéropostale.” Id. at 1422. Edward Slezak— Aéropostale’s General Counsel—stated that he believed “every penny that [Finazzo] ever9 got from South Bay should have been ours.” Id. at 858. While Finazzo argues that South Bay’s prices were fair, he has not pointed to evidence th at shows any purpose for the
kickbacks other than inflation of prices. We therefore conclude that the district court’s loss calculation was a reasonable estimate, given the available information. 4

D. Substantive Reasonableness of Sentence

Finazzo also challenges the substantive reasonableness of his sentence. The district court imposed a 96-month prison sentence after calculating a 108–135 month Guideline range. We review substantive re asonableness challenges under an abuse-ofdiscretion standard. United States v. Thavaraja , 740 F.3d 253, 258 (2d Cir. 2014). This review is “particularly deferential.” Id. (quoting United States v. Broxmeyer , 699 F.3d 265, 289 (2d Cir. 2012)) (inter nal quotation marks omitted). Thus, we will only set aside
a district court’s substantive determination “in exceptional cases where the trial court’s
decision cannot be located within th e range of permissible decisions.” United States v.
McIntosh , 753 F.3d 388, 394 (2d Ci r. 2014) (per curiam) (internal quotation marks omitted).

Finazzo rests his substantive-reasonablen ess challenge on th e argument that the district court’s loss calculation was improper. Ha ving already determined that the district court’s § 2B1.1 loss calculation was not imprope r, we have no difficulty concluding that Finazzo’s below-guidelines senten ce was substantively reasonable. See United States v.
Perez-Frias , 636 F.3d 39, 43 (2d Cir. 2011) (per curiam) (“[I]n the overwhelming majority of cases, a Guidelines sentence will fall comfortably within the broad range of sentences that would be reasonable in the partic ular circumstances. It is therefore difficult
to find that a below-Guidelin es sentence is unreasonable.” (c itation and internal quotation marks omitted)).

E. Forfeiture Instruction

In its forfeiture jury charge, the district court instructed th e jury that “the Government need only establish the extent and forfeitability of th e proceeds and a nexus between the specifically identified properties and the offenses by a preponderance of the evidence.” Finazzo App’x at 121. The jury subsequently return ed a $25,790,822.94

4 In the opinion issued simultaneously with this order, we hold that, for restitution purposes, the kickback calculation was not a reasonable approximation of Aéropostale’s loss supported by a sound methodology. However, as explained in that opinion, in order to use defendant’s gain as a measure of the victim’s loss for the purposes of restitution, this Court requires that there be a “direct correlation” between gain and loss. United States v. Zangari

, 677 F.3d 86, 93 (2d Cir. 2012). This requirement constitutes a heightened standard that is not present in the
Guidelines loss-calculation context. See United States v. Certified Envtl. Servs., Inc. , 753 F.3d 72, 102 (2d Cir. 2014) (“Though restitution and loss involve closely related calculations . . . the inquiries are not identical. . . . Because [a] defendant’s culpab ility will not always equal the victim’s in jury, an amount-of-loss calculation for purposes of sentencing does not always equal such a calculation for restitution.” (internal quotation marks and citations omitted)).10 forfeiture verdict against Finazzo. Finazzo ar gues that the district court erred in instructing the jury that a fo rfeiture finding need only be s upported by a preponderance of the evidence, rather than be yond a reasonable doubt. Fina zzo’s argument has no merit. Under this Court’s precedent, forfeiture de terminations must be supported only by a preponderance of the evidence. United States v. Daugerdas , 837 F.3d 212, 231 (2d Cir. 2016) (“For a criminal forfeiture order to pass muster, the g overnment must establish, by a preponderance of the eviden ce, the requisite nexus between the property and the offense.” (internal quotation marks omitted)); United States v. Stevenson , 834 F.3d 80, 85–86 & n.3 (2d Cir. 2016) (“[T]he amount of a forfeiture order must be supported only by a preponderance of the evidence.” (int ernal quotation marks omitted)). Therefore, Finazzo’s challenge fails.

F. Forfeiture Constitutionality

Finazzo also challenges the district court’ s determination that the jury’s forfeiture
award was not unconstitutiona lly excessive. “We review a district court’s legal determinations regarding forfeiture de novo and its underlying factual findings for clear
error.” United States v. George , 779 F.3d 113, 122 (2d Ci r. 2015). “A forfeiture is unconstitutionally excessive ‘if it is grossly disproportional to the gravity of a defendant’s
offense.’” United States v. Viloski , 814 F.3d 104, 110 (2d Cir. 2016) (quoting United States v. Bajakajian , 524 U.S. 321, 334 (1998)). This Court considers the following
factors—known as the Bajakajian factors—in determining whether a forfeiture is grossly disproportional: (1) the essence of the crime an d its relation to othe r criminal activity; (2)
whether the defendant fits into the class of persons for whom the statute was principally designed; (3) the maximum sentence and fine that could have been imposed; and (4) the
nature of the harm caused by the defendant’s conduct. Id. The burden rests on the
defendant to show the unconstitu tionality of a forfeiture order. United States v. Castello

, 611 F.3d 116, 120 (2d Cir. 2010).

On appeal, Finazzo challenges the district court’s evaluation of the third factor, arguing that the court’s purportedly incorrect Guideline calculation “fatally undermined”
its consideration of that factor. Finazzo Br. at 95; see Viloski , 814 F.3d at 114 (stating that, in evaluating the third Bajakajian factor, this Court “loo k[s] especially to the applicable Guidelines penaltie s”). Once again, having found no error in the district court’s Guidelines calculation, we reject Finazzo’s challenge.

G. Attorney-Client Privilege

Finazzo contends that he is entitled to a new trial because “the government knowingly used misappropriated attorney-client privileged in formation” when it used an email Finazzo’s attorney sent to him at his Aéropostale email account regarding Finazzo’s will, which listed his assets, including his interest in several South Bay entities. Finazzo Br. at 100. “The attorney-client priv ilege protects communications (1) between a11 client and his or her attorney (2) that are intended to be, and in fact were, kept confidential (3) for the purpose of obt aining or providing legal advice.” United States v. Mejia , 655 F.3d 126, 132 (2d Cir. 2011). “Pub lic, even extrajudicial, disclosures constitute a waiver of the privilege for the communications or portions of
communications disclosed.” United States v. Jacobs , 117 F.3d 82, 91 (2d Cir. 1997) (emphasis and internal quotation marks omitted), abrogated on other grounds by Loughrin v. United States , 134 S. Ct. 2384 (2014). Thus, “the question of whether the privilege applies . . . involve[s] a determina tion of whether the claimant asserting the privilege treated the communications in questi on in such a careless manner as to negate her or his intent to keep them confidential.” Mejia , 655 F.3d at 132–33 (alterations and internal quotation marks omitted); see also United States v. DeFonte , 441 F.3d 92, 94–95 (2d Cir. 2006) (per curiam) (noting that attorn ey-client privilege woul d be waived if the
claimant treated documents at issue “in such a careless manner as to negate her intent to keep them confidential”). The bu rden of establishing the exis tence of an attorney-client privilege rests with the party asserting it. In re Grand Jury Proceedings , 219 F.3d 175, 182 (2d Cir. 2000). “It is firmly established in this circuit that we review a district court’s finding of waiver of the attorney-client . . . privilege[] for abuse of discretion.” Id. ; see also Mejia , 655 F.3d at 131–32 (applying abuse of discretion review to a district court’s finding of waiver of a ttorney-client privilege).

The district court did not abuse its discre tion in finding that Finazzo waived the privilege as to the email. A lthough the record is unclear regarding wh ether Aéropostale’s 2004 or 2007 policy governing employees’ computer usage was in place in August
2006—the time of Finazzo’s communication with his attorney Angela Siegel—both policies specifically state that employees “s hould have no expecta tion of privacy when using Company Systems.” Gov’t App’x at 20 8; Dist. Ct. Dkt. No. 103-4, at 24. In addition, both policies notify employees th at Aéropostale may “monitor[], access[], delete[] or disclose[]” all use of Company Systems without permission. Id. Each policy defines “Company Systems” to include “int ernal and external email.” Gov’t App’x at 207; Dist. Ct. Dkt. No. 103-4 , at 23. In both 2004 a nd 2005, Finazzo signed forms acknowledging that he had read the Empl oyee Handbook containing these policies. Furthermore, between 2002 and 2006, Fina zzo signed quarterly Representation Letters stating that he was “familiar with the cont ents of the Employee Handbook.” Gov’t App’x
at 246–69.

Despite Finazzo’s familiarity with Aéropos tale’s computer policies, he used his Aéropostale email address to send and receive emails with his attorn ey. Specifically, he sent and received emails regarding his will on his Aéropostale ema il address on June 7, 2006. Notably, when Siegel se nt the August 24 email for wh ich Finazzo asserts attorneyclient privilege, Finazzo responded from his co mpany email, instructi ng Siegel to correct
the value of one of the assets listed in th e email attachment. Other than a self-serving affidavit, there is no evidence that Finazzo ma de any effort to preserve the confidentiality
of these communications. See In re Horowitz , 482 F.2d 72, 80–82 (2 d Cir. 1973) (stating12 that, in a case where privilege d information was transferred in a manner that gave another party access to it, “affirmative action to pr eserve confidentiality” was necessary to preserve the privilege). In these circumstances, 5 it was not an abuse of discretion for the
district court to rule that Fi nazzo had not carried his burden to show that he had kept the August 24 email confidential. Cf. Mejia , 655 F.3d at 133 (ruling that an inmate’s phone call was not protected by privilege because he was aware that his conversation was being recorded).
* * *

We have considered the Appellants’ rema ining arguments and find them to be without merit. Accordingly, pursuant to this summary or der and the opinion issued simultaneously with this order, we AFFIRM in part and VACATE and REMAND in
part the judgments of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

5 We note that measuring an individual’s expectation of privacy in his or her corporate email is a highly factdependent inquiry. We need not, and do not, theref ore, enumerate any particular dispositive factors.